Who You Callin’ Disabled?

Posted in: News 2005-Older

Breakin’ it Down: How the Supreme Court Matters to AIDS

By Kai Wright

Few of Washington’s rituals get the nation’s blood up like a Supreme Court nomination. And in times like these – with the left vs. right ideological divide as deep and raw as ever – a battle over the highest court in the land has the potential to make even the Florida recount look down right civil.

It comes as no surprise, then, that President Bush’s tapping of D.C. Circuit Court Judge John Roberts to replace retiring Justice Sandra Day O’Connor has generated fevered analysis from advocates of everything from the spotted toad to states’ rights. So what about AIDS?

The experts (and the progressive advocacy groups that want to scuttle any Bush nominee) are still culling through Roberts’ background, looking for signs of how he may rule on a range of issues. But when it comes to AIDS, the primary legal questions for the Supreme Court have been those dissecting anti-bias laws for people with disabilities.

Here’s a quick primer:

The background. The most relevant legal question for people with HIV/AIDS has been and remains the definition of “disabled.” The Americans with Disabilities Act (ADA), passed by Congress in 1990, protects people with disabilities from discrimination — like being denied employment, housing or healthcare because their boss, landlord or emergency room nurse has an issue with their health status. But the question courts have struggled with since the law’s passing is what makes for a disability under the law? The agreed-upon standard is that a condition must substantially limit a “major life activity.”

The debate. AIDS has always met the legal standard for disability – meaning that from Medicaid and SSI programs to the ADA, people with a full-blown AIDS diagnosed have always been covered. Not so for HIV.

But AIDS legal activists have long worked to expand these systems and protections to include people who have tested positive for HIV but not developed AIDS. Just because you’re not yet sick, they argue, doesn’t mean you can’t be discriminated against and don’t need healthcare.

Those who argue for a more narrow reading of the law in general and the ADA in specific counter that, while it may be a tough world out there for people with HIV, they aren’t technically disabled and Congress has not written any laws to protect them.

The case. This debate finally percolated up to the Supreme Court in 1998, through a case known as Bragdon v. Abbott – the Roe v. Wade of disability law. In 1994, Sidney Abbott walked into a dentist’s office in Maine and asked to have her cavities filled. She was HIV positive. The dentist, Randon Bragdon, refused and directed her to the public hospital. Abbott sued.

The settled law of the land? In a tight 1998 ruling, a slim majority of justices sided with Abbot. By a 5 to 4 vote, the Supreme Court declared that HIV is in fact a disability because it limits the “major life activity” of reproduction.

“Reproduction and the sexual dynamics surrounding it are central to the life process itself,” wrote swing-vote Justice Anthony Kennedy, who penned the majority opinion. “Conception and childbirth are not impossible for an HIV victim but, without doubt, are dangerous to the public health.” And that, Kennedy declared, “impairs” HIV-positive folks enough to offer them protection under the ADA.

Retiring Justice O’Connor, who has been touted as the court’s moderating voice, did not side with the majority in Bragdon. She wrote an opinion separate from both that of the majority and of the arch-conservatives who dissented, in which she stated that “the act of giving birth to a child, while a very important part of the lives of many women, is not generally the same as the representative major life activities of all persons.”

O’Connor was onto something. Since the ruling narrowly declared procreation as the “major life activity” that HIV impairs, is it broad enough to stand up to future challenges? And while the ruling made clear that people with HIV could not be discriminated against in housing, work and healthcare settings, it remains to be seen if it will have broader impact. Does, for instance, it mean that federal programs like Medicaid that offer benefits to people with disabilities must open up to people with HIV as well as AIDS?

These are legal questions that just may find their way back to the Supreme Court one day. Would Bush’s nominee Roberts vote for a more or less expansive reading of the law? So far, no one knows.

Kai Wright is editor of BlackAIDS.org.

Leave a Reply

Your email address will not be published. Required fields are marked *